On Thursday 23 May 2019, I attended at the Sydney University Law School Beyond Punishment Seminar Series: Aboriginal Women in the Criminal Justice Network. The speakers discussed data on Aboriginal and Torres Strait Islander women in prison, and programs to support them in the state of New South Wales (NSW). ‘Aboriginal’ women in the context of the talks and the discussion below also encompasses Torres Strait Islander women.*
Before I tell you more about the talks, I’ll set the scene, looking solely at the adult prison context affecting Aboriginal women being targeted by the criminal justice system.
Over-incarceration is an issue best examined through a lens of intersectionality, a term originally exploring the limitations of dominant definitions of discrimination under industrial law (Crenshaw 1989: 150). Legal outcomes of Aboriginal women are simultaneously impacted by race, gender, class and other systemic inequalities. Lack of legal resources available to Aboriginal women to navigate the legal system is born of concurrent racial justice and gender inequalities. Economic disadvantage, poor access to therapeutic and other health services, and housing insecurity are preconditions of offending; these are class and racial justice issues. Sexual violence and poverty of Aboriginal mothers are typical of imprisoned women’s backgrounds at a rate that is much higher than male prisoners (Stathopoulos and Quadara 2014). Again, these are both racial and gendered issues, which are interconnected with colonial violence and intergenerational trauma.
I am writing on 26 May; National Sorry Day. This day commemorates the truth-telling of the Bringing Them Home report, the documentation of the Stolen Generations. Around 100,000 Aboriginal and Torres Strait Islander children were forcibly taken from their families under our racist social policy. The first institution built to ‘civilise’ Aboriginal children through the use of violence was in Parramatta, New South Wales (Marlow 2016). From 1910 to 1970, across the nation, Aboriginal children were forced to forget their culture, language and spirituality. They were placed into neglect by Christian-run missions and into White foster care (AHRC 1997). Today, the state continues to forcibly remove Aboriginal children from their families at four times the rate as non-Indigenous kids (Zevallos 2017). New forced adoption laws in New South Wales mean children placed in care will be forcibly adopted (Zevallos 2019). For Aboriginal women in prison, this will almost certainly mean losing legal rights to see their children. Fracturing families through the imprisonment of mothers is another way in which colonial violence continues in the present-day.
Forced removal of Aboriginal children leads to cultural disconnection, exposure to child abuse, an increased likelihood of entering the criminal justice system, and trauma for mothers. These are gender, race and class dynamics unique to Aboriginal women, their families and communities.
Social context of racial injustice
At the national level, the Australian Bureau of Statistics reports that there are almost 42,800 adults in full-time custody, with Aboriginal people representing 28% of the national imprisonment rate (11,800 Aboriginal people) (ABS 2019). This is in spite the fact that Indigenous people make up only 2.8% of our national population (ABS 2017a). NSW has the highest incarceration rate across Australia (31%), and the highest Aboriginal and Torres Strait prisoner population (28% of NSW prisoners are Indigenous) (ABS 2019). Yet Aboriginal people represent only 2.9% of the total NSW population (ABS 2017b).
The Australian Law Reform Commission (ALRC 2017) reports that Aboriginal people are seven times more likely to be charged with a criminal offence and brought before the courts than non-Aboriginal people. But they are also 12.7 times more likely to receive a sentence of imprisonment. They are additionally over-represented in prison on remand (that is, denied bail and awaiting sentencing). They’re 27% more likely to be denied bail than non-Indigenous people. The remand rate for Aboriginal women is 104.3 per 100,000 compared to 6.7 per 100,000 for non-Aboriginal women. The overrepresentation ratio for Aboriginal women on remand is 15.7 (per 100,000) compared to overrepresentation of Aboriginal men (10.9) (p. 106).
Despite the justice system over-penalising Aboriginal people, they’re more likely to be given short sentences, including for their most serious charges (acts intended to cause injury). This is partly because they’re often spending more time on remand than they would’ve been sentenced. In half of the cases, the most serious assault does not result in injury (pp. 101-102). This in no way excuses violence; the justice issue is that Aboriginal people are more likely to be imprisoned even when they do not cause grave harm. Conversely, the system is more lenient with non-Indigenous people even where serious injury is involved. Three of every five Aboriginal people (60%) receive a custodial sentence for acts intended to cause injury compared with only one in three non-Aboriginal people (30%) (p. 108). With this over-policing and recurring sentencing, it’s no wonder that the rate of recidivism for Indigenous people is 76% (p. 119).
Table 1: Offence profile of people who appeared in court (2016)
|Aboriginal and Torres Strait Islander||Non-Indigenous|
|Acts intended to cause injury (24%)||Illicit drug offences (23%)|
|Public order offences (17%)||Acts intended to cause injury (20%)|
|Offences against justice (14%)||Theft and related (13%)|
|Theft and related (12%)||Offences against justice (12%)|
Source: ALRC (2017). ABS data, ‘Criminal Courts Australia, 2015-2016’ (2017). Data for men and women charged before the court
Table 1 above shows that Aboriginal people are most likely to appear before the court due to acts intended to cause injury (24% of all Aboriginal and Torres Strait Islander defendants in 2016). This is followed by public order offences (17%); offences against justice (14%); and theft (12%). For non-Indigenous people, the most common charges are: illicit drug offences (comprising 23% of all non-Indigenous defendants); acts intended to cause injury (20%); theft (13%); and offences against justice (12%). These patterns are distinct because Aboriginal people are more likely to be charged for petty offences.
The ALRC writes:
‘With respect to over-policing, the evidence indicates that Aboriginal and Torres Strait Islander women are more likely to be charged and arrested for public order offences and other forms of minor offending than non-Indigenous women. These offences include offensive language and behaviour, driving offences, and justice procedure offences (such as breach of a community-based order). When compared to non-Indigenous women, Aboriginal and Torres Strait Islander women are also more likely to be subject to “preventative” detention regimes—such as the Alcohol Mandatory Treatment regime (AMT) in the NT [Northern Territory].’ (p. 363)
You can see the charges versus remand differences between Aboriginal and non-Aboriginal people below (click to enlarge).
A prior offence is more likely to lead to a sentence of imprisonment. With Aboriginal people being targeted by a racist system since youth, specifically beginning with separation from family (p. 73), our criminal justice system is almost assuring that Aboriginal people end up in and out of jail, thanks to the current sentencing and remand patterns.
My previous research shows that most justice and rehabilitation programs for vulnerable people have an overly complicated eligibility process that reproduces stigma. These services lack culturally meaningful approaches and input from Aboriginal experts (BIU 2018).
Inadequate responses to recidivism reproduces racial and gender inequality and contributes to our burgeoning prison system. Making wrap-around services easier to join and customised to individual and community needs of clients is one part of the puzzle. Addressing systemic racism across our justice and other social institutions is the primary answer.
Injustices against Aboriginal women
Looking now more specifically at women, in the most recently available data from 2018, the Bureau of Crime Statistics and Research (BOCSAR) found that the number of women being imprisoned in NSW over the past six years has increased by 50% (from 682 to 1,021 women) (BOCSAR 2018). This is mostly affecting Aboriginal women, whose imprisonment rate has increased by 74% (from 195 to 340 women), compared with a 40% increase by non-Aboriginal women. The two biggest factors impacting this pattern is the number of women appearing before court and over-policing of women. The number of women held on remand has doubled (again: this means they’re languishing in prison awaiting trial, without conviction). BOCSAR finds that these women are not committing more serious offences. They are just being processed more vigorously by NSW Police, who are charging 405 women each month; a rate like never before.
At the state and national levels, this is a gendered and racial justice crisis. Up to 90% of women prisoners are victims of domestic and family violence (Gleeson and Baird 2018). The injustice is compounded by the fact that these women are not provided support to begin with and then are revictimised by harsh police and criminal justice action. Perpetrators also use the criminal justice system to seek revenge, by misidentifying women as primary aggressors (Women’s Legal Service Victoria 2018). Aboriginal women victims of intimate partner violence are over six times more likely to experience mental health and other health burdens when they’re of childbearing age (18 to 44 years; over five times for other ages) (Webster and Zevallos 2016). Eighty percent (80%) of Aboriginal women in NSW directly identify their history of sexual abuse as a precursor to, or otherwise impacting, their reoffending (ALRC 2017: pp. 351-353).
At the time of arrest, the majority of Aboriginal women who are incarcerated were under the influence of drugs (68%), alcohol (14%) or both (4%) (Lawrie 2003: 47). Alcohol and other drugs (AOD) are often used as self-medication to cope with sexual abuse and other intergenerational trauma. Eighty percent of Aboriginal women interviewed by Wakka Wakka and Wiradjuri woman researcher, Rowena Lawrie, said that their drug use was a contributing factor to their incarceration (Lawrie 2003: 48).
‘If we had more support, then we wouldn’t need alcohol or drugs, we need housing when we get out of custody.’
‘If there were more rehabilitation centres available to me earlier in life, maybe I would not be in the situation I am today.’
‘When I was first convicted at 18, I was shoplifting to sell goods so that I would have money to buy drugs… I have never been offered drug rehabilitation. I wanted to go to drug rehabilitation but have never had the opportunity.’ (Lawrie 2003: 49)
AOD use often leads to homelessness or precarious housing for Aboriginal people because of few rehabilitation and housing options available to them. Indigenous people were more likely to be homeless prior to being imprisoned (27%) compared to non-Indigenous people (24%). Indigenous people were also less likely to have their own long-term accommodation organised by the time they were discharged from prison (56%) compared with non-Indigenous people (62%) (AIHW 2015: 28-30).
Without stable housing, children are taken from Aboriginal women, and they have little resources and legal recourse to get their kids back. This ensures the cycle of poverty, forced family separation and intergenerational trauma of the Stolen Generations will be passed onto the next cohort of youth (AHRC 1997).
Lack of trust in legal and medical institutions impact on the help available to Aboriginal women caught up in the criminal justice system. The women’s distrust is warranted, due to historical injustice, discrimination, and cultural disrespect embedded into these institutions. Other barriers to Aboriginal women finding adequate support include:
- institutional racism, poverty and social isolation;
- previous adverse family experiences;
- lack of understanding of their rights and options;
- fear of losing their children due to traumatic experiences with human services and related agencies; and
- poor access to interpreters and culturally safe support (ALRC 2017: 353; see also Zevallos 2017).
In 2017, the Women’s Legal Service NSW made the following recommendation to the Australian Law Reform Commission:
‘Legal reform is needed to reduce the criminalisation and over-incarceration of Aboriginal and Torres Strait Islander peoples, particularly women. There must be a whole-of-system approach which addresses the underlying causes and drivers of the offending behaviour with a greater focus on prevention and early support.’ (WLS NSW 2017: 3)
Let’s now hear from the Sydney Law School panel.
Impact of over-imprisonment
Ms Vickie Roach, Yuin woman and former prisoner, spoke about the need to abolish the prison system and redirect funding to support women and create better programs. More from her soon.
Ms Gail Gray of Corrective Services NSW, Aboriginal woman and former prisoner, discussed the Miranda Project, which provides reintegration and other services. She reports that there are 996 women currently in prison in NSW and one third (34%) of them are Indigenous. This is in spite the fact that Aboriginal women make up only 1.5% of the total NSW population.** Gray says Aboriginal women are 21 times more likely to be imprisoned than non-Aboriginal women.
Gray points out that most women in prison are in a constant state of being re-imprisoned. A quarter of all women in prison had been placed in state care as children (24%) compared to 13% of men. These women have complex support needs, such as:
- co-occurring mental health issues (61% are diagnosed with depression and 51% have anxiety);
- almostly three-quarters have witnessed a traumatic event (70%);
- the same proportion of women have experienced intimate partner violence (71%);
- half of current women prisoners have been previously incarcerated (51%); and
- half of the women in prison (54%) have at least one child under the age of 16.
(Data for both Aboriginal and non-Indigenous women)
Gray explains that the first three months post-release from prison leave women most vulnerable to reoffending, homelessness, re-imprisonment, and self-harm. These women lack a sense of purpose, life skills and an ability to adjust to life (“gate fever”) due to being over incarcerated for prolonged periods. Having become institutionalised, they lack structure to anchor their progress. They are sometimes released without identification, belongings and may only be given a fare back to the place where they were arrested. Given many are homeless at the time, this takes them away from community they know. They are socially isolated and many have lost family and community ties. The death rates for women ex-prisoners are 10 times higher than the rest of the population. Other common issues for women post-release from prison include:
- Homelessness or unsuitable accommodation (especially to help them get their kids back);
- Outstanding debt, financial hardship and lack of employment opportunities;
- Multiple health problems alongside alcohol and other drugs dependency; and
- Few options for rehab and other limitations due to parole or community sentencing.
Other issues faced more specifically by Aboriginal women post-custody:
- Loss of kinship and cultural connection due to incarceration;
- Intergenerational trauma due to colonisation compounded by prison;
- Lower life expectancy;
- Multiple health complications;
- Lower rates of education; and
- Higher rates of disadvantage along multiple axes.
Differences between Aboriginal and non-Aboriginal women
Next was Ms Kelly-Anne Stewart, who is the Principal Advisor on Women Offenders at Corrective Services NSW. She is not Indigenous. She discussed how one of the key differences between Aboriginal and non-Indigenous women is Aboriginal women are mostly sentenced for offences against criminal justice procedures. These are not violent offences. For Aboriginal people, this is mostly breach of community-based orders (62% for all Aboriginal prisoners,) and breach or violent and non-violent order (30%) (see ALRC 2017: 113).
I note that in the case of apprehended domestic violence orders, offenders do not understand conditions of their orders due to convoluted legal language requiring a high level of education (BIU 2016: 22-24). This may also contribute to other breaches by Aboriginal people who may not understand what’s required of them, or perhaps they are distrustful of ongoing engagement with criminal justice due to previous negative experiences. These dynamics might contribute towards offences against justice procedures.
Table 2: Top most serious offences for women sentenced
|Acts intended to cause injury||Illicit drug offences|
|Offences against justice procedures, etc.||Homicide and related|
|Theft and related||Offences against justice procedures, etc.|
|Unlawful entry with intent/ burglary, breaking & entering||Fraud, deception and related|
|Fraud, deception and related||Acts intended to cause injury|
Source: reproduced from Kelly-Anne Stewart (2019)
Aboriginal women in prison are twice as likely to have both their parents also in prison. They have suffered psychotic disorders. They are less likely have any visitors whilst in prison. Aboriginal women are also half as likely to have been employed prior to prison. Stewart reports that the reoffending rate for Aboriginal women is 52.6% versus 42.2% for non-Aboriginal women. The most damning is that Aboriginal women are five times more likely to have been imprisoned over 11 times.
Table 3: Issues affecting Aboriginal and non-Aboriginal women in prison
|Issue||Aboriginal %||Non-Aboriginal %|
|Employed before custody||12||34|
|No visits whilst in prison||59||36|
|ADD or ADHD||12||6|
|Children living with them prior to custody||16||17|
Source: reproduced from Kelly-Anne Stewart (2019). Data from AIHW 2015
Stewart recounts that 70% Aboriginal women in prison have been sexually abused as children (cf. Lawrie 2003: 33). I note this abuse includes post removal from family (WLS 2017: 6). Stewart explains that a further 44% experience sexual violence as adults (it’s likely both rates are under-reported). Additionally, 78% of Aboriginal women in prison have experienced other types of violence (cf. Lawrie 2003: 54).
‘We also know that exposure to and histories of prolific abuse can be linked to women’s offending and act as a barrier to accessing rehabilitation and support services.’
Programs of support
Louise Lynch, Kamilaroi woman, is Principal Manager of the Aboriginal Strategy & Policy Unit at Corrective Services NSW. She talked about various Corrective Services programs including cultural reconnection on Country, life skills, mental health, mums and bubs, and employment qualifications. Below is an example of the Gundanha employment program that provides job readiness and qualifications for Aboriginal women who are incarcerated. The program aims to provide:
- Employment readiness skills;
- Pre-release employment pathways, post-release planning and tailored mentoring;
- TAFE construction industry competency qualifications;
- Contact with Aboriginal community and culture;
- Social and emotional wellbeing programs; and
- Post-release mentoring for up to six months.
Lynch then discussed the Aboriginal Mothers Work Readiness Program. It provides parenting support and transition into housing, education, vocational training and employment. The aims are:
- Positive parenting skills;
- Accredited barista training;
- Interagency care services for women with complex issues;
- Trauma-informed therapeutic interventions; and
- Pre- and post-transitional support and reintegration services.
Motherhood on trial
Dr Jane Walker, who is a non-Indigenous academic, shared her team’s research on women and their babies (the project includes both Aboriginal and non-Aboriginal prisoners). Seven of eight Australian states and territories allow babies and toddlers to live with their mums in prison (South Australia being the exception) (cf. Rosemary Walker, Baldry and Sullivan 2019). This is seen as a ‘privilege,’ which is tightly regulated (not a right, as it should be). Processes differ, however, and recent research shows only 13 prisons around Australia have the facilities to house children. The amenities are often inadequate, with basic necessities such as nappies not being readily available (Rosemary Walker, Baldry and Sullivan 2019). Dr Walker says:
“Motherhood should be a visible factor in sentencing.”
But it isn’t.
Mothers who have their babies with them in prison are poorly supported. They’re harshly scrutinised by guards and other prisoners. They’re constantly afraid their kids will be taken from them. In order to have their children with them, these women must sign a contract saying they take full responsibility for their children. This effectively means they and their children are left vulnerable in prison and they are denied rights other mothers have outside of prison.
With the formal presentations complete, we moved to questions from the audience.
The panel was asked to comment on the staggering figure that 65% of Aboriginal women in custody are mothers. The speakers discuss that most of these mothers are affected by intergenerational trauma, lack parenting role models, domestic and family violence.
Once they are incarcerated, many of them don’t know where their children are placed or how to find them on release. Most of these mothers have lost their parenting and visitation rights. (Bearing in mind the short but repeated sentences Aboriginal people are given, two things jump out at me: how swiftly the state moves to remove Aboriginal children from their mothers after mostly non-violent offences and the repeated disruption to families when mothers are constantly being imprisoned for petty offences.)
The panellists tell us that some Aboriginal women are fighting to get their kids back from domestic and family violence perpetrators (or their partner’s / perpetrator’s family). Other women want options to heal past relationships with perpetrators who are the fathers of their children, as well with these extended families. Support services and programs need to understand the complex histories and deep community and family ties that Aboriginal women navigate. They need different solutions that will suit their cultural, family and spiritual needs.
Technology, education and housing
A lengthy comment about the lack of laptops for prisons leads to fruitful discussion about the connection between technology and educational opportunities for inmates. A senior male executive from Corrective Services answered these questions, saying Corrective Services is ready to trial phones in each cell. They will also be testing providing prisoners small wireless tablets in two NSW sites. He noted that this is not a working solution for education, but Corrective Services is looking for other options by the end June 2019. Panellist Vickie Roach expressed her frustration at these trials, because she says this technology has already proven to improve the wellbeing and future prospects of prisoners in other parts of the world and in other Australian states, such as Victoria.
Roach got her Masters in prison – in spite of her experience in prison. Her professor delivered laptops “sneakily” so all the students could study. (Later their computers did get all necessary securities.) The technology is also immensely helpful to prisoners preparing their defence.
Prisoners have access to computers in common areas but these are underdeveloped for education needs. First, there are not enough per person. Second, education officers have to print all education materials for postgraduate students, making the study process cumbersome.
The final question of the night is simple but effective: what’s the best way to spend funding to prevent Aboriginal women going into prison?
The panel is unanimous: housing, housing, housing.
Where Aboriginal women in NSW can get help
For Aboriginal-community controlled legal and community services around New South Wales
- Aboriginal Legal Services provide a custody notification service ensuring Aboriginal people have access to quality 24-hour legal advice. They also specialise in family law and other services
- Visit AbSec for a list of Aboriginal community controlled organisations
For Aboriginal women in the Central Coast of New South Wales
- Contact Yerin, they are an Aboriginal-controlled organisation providing culturally safe health and family services, including piloting a new program to preserve families whose kids are in out-of-home care
- Reach out to Yamurrah. They provides trauma-informed healing and theraputic services. They also provide training, consultation and other services
For Aboriginal women in the South Coast of New South Wales:
- Get help from Waminda. They provide health and holistic support for women in prison, referrals and other community and family services
Ways to help Aboriginal women impacted by injustice
- Donate to the Free the People campaign. Run by Debbie Kilroy, CEO of Sisters Inside, donations are used to free single Aboriginal mothers in Western Australia, who are being overwhelmingly impacted by unfair fines
- Donate to Djirra (formerly the Aboriginal Family Violence Prevention and Legal Service Victoria – FVPLS Victoria). They provide practical help to Aboriginal women and their children who are victims of domestic and family violence
- Donate to the Tangentyere Womens Family Safety Group. They are an Aboriginal-women controlled Town Camp in the Northern Territory providing early intervention and support to women experiencing domestic and family violence
*The majority of Indigenous people in NSW identify Aboriginal (95.9%) or as both Aboriginal and Torres Strait Islander (1.9%). The proportion of people identifying as solely Torres Strait Islander is smaller (2.2%) . This is why the speakers and my post use the term ‘Aboriginal’ in the NSW context. I’ve written otherwise (e.g. ‘Indigenous’) where the references or speakers use a different term.
** There are 7,480,228 people living in NSW (ABS 2017a). This includes 216,170 Aboriginal and Torres Strait Islander people (ABS 2017c). Of these, 108,811 are women (Angus 2018: 18). This means Aboriginal women make up 1.5% of the total NSW population.
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